By Aron Solomon
Sometime within the next eighteen months, it could be theoretically possible that Britney Spears will be delivering one of her now-famous judicial soliloquies about her 13-year conservatorship ordeal in front of the Supreme Court of the United States.
But while this is possible, from the legal perspective, it is highly unlikely even if where we are today is further along the continuum of the Britney Spears toxic conservatorship than we ever have been. The Hon. Brenda Penny, a judge for the Los Angeles County Superior Court in California, is overseeing Ms. Spears’ case. Just last week Judge Penny agreed to let Ms. Spears hire her own lawyer, as her court-appointed lawyer had resigned.
In her two appearances over the past month in Judge Penny’s court, Ms. Spears has delivered what her fans around the world have characterized as the impassioned speeches of a woman seeking justice for herself and others. Some have also characterized this as a tangible path to her own freedom from the conservatorship that has been in place – against her will – for the past thirteen years.
So what is a possible path for Ms. Spears to deliver a similarly inspiring speech in front of the highest court in the nation – the Supreme Court of the United States?
Looking ahead, one possible path could hinge on the sufficiency of evidentiary support for what is the inevitable motion to end her conservatorship. Ms. Spears has already laid the foundation for what the court may see as critical evidentiary insufficiency by stating on multiple occasions – as recently as last week – that she will not undergo any further physiological evaluations as she pursues freedom from her conservatorship.
Looking through a purely legal lens, it is not difficult to see a scenario where Ms. Spears has an eventual motion to end the conservatorship denied because, absent a recent psychological evaluation in which she is determined to be mentally and emotionally capable of handling her own affairs, the court reasons that she doesn’t have the necessary evidence to end the conservatorship.
Next in the legal process would be for her legal team to file an appeal. California’s state courts have three levels. The trial court, also known as Superior Court (there are 58 of these in California – one of which is the Los Angeles County Superior Court where Ms. Spears’ motions are now heard and where she would file her motion to have her conservatorship end), the Court of Appeal (there are 6 of these in California – the 2nd District Court of Appeal, in Los Angeles, would be the one to hear an appeal from Judge Penny’s trial court) and the California Supreme Court.
So let’s assume in our scenario that Ms. Spears loses in Superior Court, loses again at the Court of Appeal, then appeals again and the California Supreme Court agrees to hear the case. Assuming that she loses again in California’s highest court, she would absolutely have the right to appeal to the Supreme Court of the United States. It is very important to note that
I want to be crystal clear here that I personally believe – as a close observer of what state (particularly California) and federal courts do every day – that Ms. Spears will lose her battle at trial court to have her conservatorship end. I also believe that if this happens, there is a strong chance that the Court of Appeal would be interested in hearing the case. And if she loses in the Court of Appeal (I have no strong opinion as to what would happen on appeal), there is a lesser but still decent chance that California’s top court would take a look at this case.
It’s at the level of the Supreme Court of the United States where things get very tricky. The Supreme Court is not obliged to hear any case, ever. While the Court does agree to hear cases every term – and they have already agreed to hear approximately two dozen cases in their 2021-2022 term beginning in October – there is no requirement, constitutional or otherwise, for them to hear a case. The Supreme Court can also hear pretty much any kind of state court case, as long as it involves federal law, including the Constitution. There is no doubt that Ms. Spears’ legal team can find a federal or Constitutional shield or sword to use to argue that her case should be heard by the Court.
But it is, again, entirely up to the Supreme Court whether they want to hear the case or pass on it. Only if the Supreme Court finds a legal issue here that they believe merits their judicial review will the Court grant a writ of certiorari, which would allow Ms. Spears’ appeal of the decision of the California Supreme Court to be heard by the Supreme Court of the United States.
The chances of getting your case heard by the Supreme Court of the United States are pretty much what Elle Woods’ chances were of getting into Harvard Law School in the absolutely epic Legally Blonde, which celebrated its 20th anniversary last week. The Court generally agrees to hear approximately 100 of the 7,500 cases it comes across each calendar year. The numbers aren’t great, to say the least.
But the timing might finally be right.
As reported today in Business Insider, South Carolina Republican Rep. Nancy Mace and Florida Democrat Rep. Charlie Crist announced the bipartisan “Free Britney” Act, which aims to end conservatorship abuse. The aptly-named Freedom and Right to Emancipate from Exploitation (FREE) Act was introduced today to crack down on the exactly the type of conservatorship Ms. Spears has described having – one that is deeply abusive and deprives the person of their basic dignity as they are essentially held hostage to the dictates of the court and conservator.
While there are no guarantees that the FREE Act will get very far or that Ms. Spears and her legal team will have enough evidentiary support to convince any court that her conservatorship should end, what Ms. Spears has absolutely self-created over the past month is momentum – an intangible that should never be overlooked in the complex machinations of the legal process.
